Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 03CF0441 William R. Froeberg, Judge. Affirmed as modified.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
SILLS, P. J.
Jacob Rump was charged by information with conspiracy to commit murder, murder committed for the benefit of the Public Enemy Number 1 (PEN1) or PEN1 Death Squad (PEN1 PDS) criminal street gang, premeditated attempted murder of a peace officer, being a felon in possession of a firearm, two counts of carrying a firearm while being an active gang member, and two counts of street terrorism. Several sentencing enhancements were also alleged, including commission of a crime for the benefit of a criminal street gang, being a principal to a crime when another gang member intentionally discharges a weapon, the service of four prior prison terms, and a prior serious felony conviction, within the meaning of the “Three Strikes” law. (Pen. Code, § 667. subd. (b)-(i); 1170.12.)
All further statutory references are to the Penal Code unless otherwise stated.
A jury convicted Rump of all counts and found true all sentencing enhancement allegations. The court found true the prior conviction allegations. At the sentencing hearing, the court denied Rump’s new trial motion and imposed a total aggregate prison term of 83 years to life. The court sentenced Rump to a life term without the possibility of parole for murder, which was tripled as required by the Three Strikes law (§ 667, subd. (e)(2)(A)), plus 25 years to life for vicarious possession of a gun by an active gang member (§ 12022.53, subd. (e)(1)), another 25 years to life for felon in possession of a firearm (§ 12021.1, subd. (a)), 25 years to life, plus 20 years for attempted murder of a peace officer (§§ 187, subd. (a)/664, subd. (e)), and 25 years to life for street terrorism (§ 186.22, subd. (a)). A consecutive three-year sentence was imposed for the prior prison terms (§ 667.5, subd. (a)), and 10 years for his prior serious felony conviction (§ 667, subd. (a)).
Rump challenges the judgment on the following grounds: (1) Sufficiency of the evidence to prove he aided and abetted codefendant Michael Lamb in the commission of murder; (2) sufficiency of the evidence to prove Rump possessed a firearm; (3) sufficiency of the evidence to prove Rump was an active participant in the PEN1 criminal street gang; (4) sufficiency of the evidence to prove Rump aided and abetted Lamb in the commission of attempted murder as a natural and probable consequence of discharging a gun; (5) sufficiency of the evidence to prove street terrorism and firearm possession; and (6) sentencing error in the court’s imposition of sentence for gun possession by an active participant in a criminal street gang.
The Attorney General concedes the sentencing error and we shall order the abstract of judgment corrected to reflect this modification. In all other respects, the judgment is affirmed.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)
March 8 Murder of Miller
Sometime between 10:30 and 11:30 p.m. on March 8, 2002, residents in the area of 1700 West Gramercy Avenue in Anaheim heard what sounded like a gunshot followed by the screeching of car tires. Responding police officers found the body of a man, later identified as Scott (Scottish) Miller, lying face down in a pool of blood in an alley just north of 1700 West Gramercy. They also found a black baseball cap and a soda can underneath Miller’s body, and a Winchester nine-millimeter bullet casing nearby. There were tire tracks running through the blood trail, and investigators found a shoe print in a nearby planter. Casts were made of the footprint, which was of a man’s size 7.5 to 11 shoe.
Miller died from exsanguination caused by a single gunshot wound to the back of his head. The bullet core lodged in his right ear canal, and the bullet’s copper jacket lodged in his skull. The absence of any burned tissue or powder burns indicated that the gun was not held to Miller’s head, but that it was more likely placed within a couple of inches of his head when fired. There were no usable fingerprints on the ejected shell casing. Although the bullet jacket removed from Miller’s head had some markings for comparison purposes, the core of the bullet was too small to reach any conclusions as to its source.
The police investigation into Miller’s death revealed that he was an original founding member of the Southern California White Supremacist criminal street gang known as PEN1 or PEN1 PDS. The gang, which is active in the California state prison system, started in the late 1980’s and is a subordinate gang to the White Supremacists gang called the Aryan Brotherhood. In 2002, the gang had at least 200 members, including Lamb and Rump.
Rump has the following gang tattoos on various parts of his body: swastikas, a Celtic cross, the numbers 14, 88, and “1933,” and the words “skins,” “PENI,” and “White Power.” Lamb, who is also known as POK1, also has several gang-related tattoos, including several swastikas, a Celtic cross, an anarchy symbol, a skull, the number 737, and the words “blood,” “honor,” “PDS,” “skin,” “LAS,” which refers to Los Angeles Skins, “WP,” which stands for White Power or White Pride, and “Death Squad.”
According to the prosecution’s gang expert, despite Miller’s original gangster status in PEN1, by 2000, he was becoming increasingly disliked by other PEN1 gang members and was viewed by some as being out of control. Although Miller continued to be a member in good standing notwithstanding the internal dissention, all that changed when Miller decided to participate in a local Fox 11 television news segment about PEN1 and its criminal activities. The show was broadcast on February 20, 2001, a few days before another founding member of the gang, Donald “Popeye” Mazza, was to stand trial for PEN1-related criminal charges. Despite Fox’s attempt to conceal Miller’s identity, it was obvious to anyone who knew him that it was Miller featured in the program. Apparently, Fox was unable to conceal all of his visible tattoos, and they allowed him to be interviewed with his beloved pet pit bull dog.
As might be expected, Miller’s interview did not go over well with other PEN1 gang members. According to another gang member, Darryl Mason, Miller’s participation in the television segment put him “in the hat,” or cancelled his good standing in the gang. In fact, Mason testified that other members of the gang put a “green light” on Miller, which meant that he was targeted for an act of violence. Approximately one month before his death, there was a rumor circulating that Miller would be “hit” for participating in the Fox television program, and that PEN1 members John Gross or Jesse Wyman might have been designated to carry out the hit and kill Miller. However, Gross and Wyman were incarcerated at the time, and Miller was enjoying a brief stint of life on the outside.
Mason joined PEN1 sometime between 1991 and 1993. Although incarcerated in 2002, he remained an active gang member throughout one of his many stays at the Orange County jail. Like Miller, Mason has numerous gang-related tattoos all over his body, including the words, “Gladiator,” “Death Squad,” “SS” and “PENI.”
March 11 Attempted Murder of Peace Officers
On the afternoon of March 11, 2002, Anaheim Police Officer Michael Helmick, then assigned to an undercover auto theft detail, responded to a report of a stolen car parked in an alley behind 318 South Melrose Street in Anaheim. He was assisted by Anaheim Police Officer Bryan Santy, who was an observer in an Anaheim Police Department helicopter piloted by another Anaheim police officer. Helmick, who was not in uniform, arrived at the scene in an unmarked police car. He quickly determined that the car, a Ford Taurus, had in fact been reported stolen, and he requested the assistance of a backup officer, Anaheim Detective Danny Allen.
While Helmick waited for Allen to arrive, he saw Rump drive the Taurus out of the alley and onto South Melrose Street where he parked in front of an apartment complex. Helmick followed the car and parked about five car lengths behind Rump. Rump looked back and stared at Helmick through his side view mirror. Lamb ran out of the apartment complex and got into the stolen Taurus. He was carrying a black jacket. Santy reported that Lamb was one of two individuals with shaved heads who had been “milling around” in the alley before Helmick arrived.
After Lamb got into the car, Rump made an abrupt U-turn and drove toward Helmick on South Melrose Street. Helmick tried to block the Taurus as it approached him, but Rump drove over a curb to avoid stopping and then accelerated in the southbound lane of South Melrose Street. Helmick and the helicopter pursued the Taurus. Allen, who was also in plain clothes and driving an unmarked car, joined the pursuit. He also tried using his car to block the Taurus, but Rump again swerved around the car and continued onto Center Street.
Helmick and Allen temporarily lost sight of the Taurus when it turned onto Center Street. However, Santy maintained eye contact as the helicopter dipped to an altitude of 400 feet. Santy saw Rump and Lamb jump from the still moving Taurus and run into a nearby apartment complex. He relayed this information to Helmick and Allen as the now driverless Taurus collided with a parked car.
Following Santy’s directions, Helmick got out of his car and pursued Rump and Lamb on foot. As he entered the apartment complex, Helmick noticed a black jacket on the ground that looked like the jacket Lamb had been carrying. Allen parked his car, put on a yellow police raid jacket, and entered the apartment complex to join Helmick.
Helmick and Allen had their guns drawn and their radios turned up to maximum volume to overcome the noise from the helicopter. They contacted a maintenance worker, who told them he had seen a man run by less than a minute before the officers arrived. Santy watched as Lamb and Rump appeared on a second story balcony, and he relayed their position to Helmick and Allen. The officers, who had their guns drawn, were in the process of clearing a stairway when Lamb stood up on the balcony, reached over the railing, and fired a shot at Helmick from a distance of about 10 feet. When Helmick and Allen fled for cover, Lamb pointed the gun at the top of the stairs and then, while sitting in a crouched position, he began “fiddling with” the gun. Rump, who had been lying on his back, repeatedly kicked the wall of the balcony.
Helmick and Allen yelled, “Police officers,” several times. They told Lamb that he was surrounded, and they directed him to drop the gun and surrender. Approximately a minute later, Lamb leaned over the balcony and threw the gun, now wrapped in a cloth, down to a planter below. He walked down the stairs and was taken into custody. As additional officers arrived at the scene, they ordered Rump to surrender himself. Several minutes later, Rump, who was now limping, came downstairs and was taken into custody.
The gun Lamb dropped turned out to be a Browning nine-millimeter, single-action semiautomatic handgun. A white bandana had been tied around the gun’s handle. The hammer was cocked back in the firing position and the safety was off. However, a spent cartridge casing jammed the firing mechanism. The magazine was loaded with ten rounds of live ammunition, including six hollow-point Winchester bullets and four “Super-Vel” bullets.
A forensic specialist later determined that the expended shell casing found at the scene of the March 8 Miller homicide had been fired by the same Browning gun Lamb possessed and fired on March 11. While the bullet jacket removed from Miller’s head had characteristics consistent with having been fired from this gun, the specialist could not make a definitive match. The bullet core removed from Miller’s head was of insufficient quality to do any comparison with bullets fire from Lamb’s gun.
Rump and Lamb’s hands were tested for gunshot residue. Rump had no traces of gunshot residue on his hands at the time of his arrest, but Lamb had two unique gunshot residue particles on his right hand. Another unique gunshot residue particle was found on one of two black gloves later located in the stolen Taurus, although subsequent DNA analysis did not link Lamb to the gloves. Investigators also found two buttons on or near the balcony where Rump had been seen lying down and kicking. When Rump was arrested, his shirt was missing some buttons.
After their arrest, Lamb and Rump were placed in adjoining cells. They shouted back and forth to each other, and their statements were recorded. The gist of the conversations was that they did not know the two cars that tried to stop them were unmarked police cars, and that Rump was worried that he had hit someone. Rump admitted running a stop sign (apparently, he believed the traffic incident led to his arrest), but Lamb told him to not worrying about it because “a Public Defender can fucking beat this case.” Throughout the conversation, Lamb and Rump called each other “Homie” and “Comrade.”
When Rump was interviewed by investigators, he initially said that he had permission to drive the Taurus, but later claimed the car was a rental. He also admitted recently injecting methamphetamine, and told the interviewing officer that he had “been up a while.” Rump told the officer that some “dude” in a white car had tried to hit him. Rump claimed to be living on the streets at the time, and he told the officers he should just be sent back to prison for a parole violation. He would not answer questions about PEN1.
When a sergeant tried to interview Lamb, Lamb first yelled, “Hold on. I got [to] tell ‘em I ain’t got nothing to say.” When the officer told him he was being held for attempted murder, Lamb told the officer that he did not know he was shooting at a police officer and that he “was afraid for [his] life.”
Police Investigation
In March 2002, Robin Freiwald lived in an apartment in the complex at 318 South Melrose with her daughter, Summer, and 10-year-old son, Michael. Michael told investigating officers that Rump and Lamb would occasionally stay at their apartment, but they did not have any clothes stored there. He remembered that they were together most of the time. Michael also said that he had seen Rump “playing around with a white bandana,” but he did not recall them handling any guns. He told the detectives that Rump and Lamb had left Freiwald’s apartment at 8:30 p.m. on March 8 and did not return that night. The distance between Freiwald’s apartment and the scene of Miller’s murder is approximately 3.2 miles.
During a search of Friewald’s apartment, officers seized a box containing papers with swastikas and “WHITE POWER” written on them, an empty cigarette carton with “PEN1 737,” and a piece of tape with the name “Jake” on it.
On March 11, detectives videotaped two interviews with Freiwald. She told them that Rump and Lamb were at her residence on March 8, from approximately 7:00 p.m. to until 9:30 or 10:00 p.m. when she went to bed. They were not in her home at 9:00 a.m. when she woke up. She told the officers that Lamb and Rump watched the movie “Joe Dirt” with her family.
In the days following their arrest, Lamb and Rump made several collect telephone calls from the Orange County jail. The calls were recorded. On March 12, Rump called Friewald. She complained that police officers had “thrashed [her] house and [taken] her kids....” Rump told her he had been charged with attempted murder and grand theft auto, but he said that he was driving a rental car and he had just tried to avoid getting hit. Rump also told Friewald, “And that’s like the only thing I need... is to fucking get a hold of fucking whoever they gotta find out. And have that dude get ready come and fucking testify saying yeah, he did rent the car for homeboy.” He asked Friewald what had been taken as a result of the search, and he admitted to her that he had heard the helicopter overhead for about 30 minutes before Lamb fired a shot.
Freiwald told Rump that she reported they were all together on the previous Friday night (March 8) and that they watched the movie, “Joe Dirt.” When Friewald told Rump the police were searching for guns and ammunition, Rump said, “That’s fucking weird.” He also told her, “My mind is going crazy trying to figure out what the fuck all this shit’s about anyways. Now that I go from fucking being normal, to having a fucking P-, PAL warrant, to all of a sudden... all these fucking cops on my ass....” He also told her that he intended to use methamphetamine as a defense to any charge: “That’s what I’m gonna say, ‘drugs.’” He also wrote to Freiwald, and asked, “How is my number one muffin, then, that don’t know nothing doing?”
Friewald’s son Michael told officers that he remembered watching “Joe Dirt,” but he said that did not occur on Friday night because he had a school conflict.
Lamb also called Friewald. He wanted to know what had happened after his arrest and what questions the police officers had asked her. Friewald said that the officers had asked if she kept guns in her apartment and where Lamb and Rump had been on certain nights. Friewald said that she had told the officers she did not keep guns in her apartment and that Lamb and Rump were at her home “almost every night.” Lamb asked her for specifics. Friewald then explained that the officers had asked about Thursday, Friday, and Saturday nights, and that she had told them Lamb and Rump were at her apartment on Thursday and Friday, but not Saturday. Lamb told her he was charged with attempted murder of a police officer. He said, “we didn’t know they were cops.... We thought they were the, the gang bangers that were trying to get us the other day.” Lamb was sure that if he had a lawyer he “could probably beat” the rap. Both Rump and Lamb told Friewald they knew that their conversations were being recorded.
Rump also called Mary Worthington. Worthington told Rump that she “got a hold of [Friewald],” and that Friewald said that “on Friday night, you and her and her daughter watched “‘Joe Dirt.’” Rump replied, “Yeah, I know, I know.” Worthington stated, “All right?” Rump replied, “Okay?” He also asked Worthington to arrange for a lawyer.
Lamb and Rump also wrote dozens of letters while awaiting trial. On one occasion, Rump wrote to Lamb and said that he had “joined the family.” Lamb and Rump referred to each other as left and right “butt cheeks,” and Rump referred to himself as Lamb’s “better half” and said he and Lamb “fit together like a precision tuned machine.” Rump also prided himself on his driving skills, writing, “If it has a motor and wheels, then I drive it, ride it like you wouldn’t believe. I’ve been doing both for as long as I can remember.” In another letter to Lamb, Rump wrote, “And next time I ain’t stopping, we are driving straight to hell.” Rump also wrote a letter to Mazza, the PEN1 gang member awaiting trial when Miller’s interview aired. Rump complained because he felt that Mazza had been neglecting him, and he referred to himself as the “finest specimen of ‘P’... hate this side of the Rio Grande.” He also expressed his belief that while his own “journey had just begun,” Mazza’s journey “has been [] ongoing....”
In a letter to a T. Holden, Rump wrote, “Yeah, Baby, I remember when you called. You don’t know how much I regret not going to pick you up that night. I keep thinking that if I had, you would be in my arms right now... You know, I can’t change the past, and I can only predict the future 50 percent of the time. But know this, if I would have be able, I would have. I was doing something though, that could not be put off.”
In a letter to Candace Fechtig, Rump referred to himself as one of the finest skinheads in Orange County and that he was “from the infamous ones.” And, in a second letter to Fechtig, Rump wrote, “The infamous ones are the first and still the biggest skinhead gang in Orange County and [in] the L.A. area, PEN1 Death Squad. Come on, now silly, I know you have heard of us.”
Lamb wrote to Rump in August 2002, stating, “Hey Listen, Big Guy, I’m still trying to get a hold of the twist of yours. I’ll continue ‘til I do. Also, I will get at B.J. I know he’s got dope. I might even pick up some for myself. Oh, which in speaking, I believe he got a hall pass for riding on my coattails.”
In November 2002, Darryl Mason, a former member of PEN1 and frequent guest of the California Department of Corrections and Rehabilitation, set up a meeting between himself and law enforcement officials. He told police officers that Lamb had stood outside his cell door and quietly told him “how he whacked Scottish and that he had stripes coming for that.” When Mason asked Lamb how he had done the crime, Lamb said he shot Miller in the back of the head. Mason said that Lamb seemed serious and looked to be asking “for a little bit like a pat on the back or something.”
Mason reported this incident to investigators. He was later interviewed by several police officers and one parole agent, and placed in a segregated protective custody unit. Although he received no promises of leniency as a result of information, Mason said he wanted to do the right thing, but feared for his family’s safety.
Shortly after this meeting, Mason was placed in a secure housing unit. At trial, he testified that he had been jumped into the PEN1/PDS gang in the early 1990’s while he was serving a sentence in the Orange County jail. He was a member in good standing until 2002 when Donald “Popeye” Mazza, who was standing trial at the time, wanted people to stop recruiting new members. When Mason refused to follow this order, the gang’s leadership put him “in the hat,” which means that he was targeted for violence. Mason knew of Miller and considered him one of the gang’s founding members. He also knew that Miller was “in the hat” because of the Fox 11 television interview.
Further investigation into the Miller murder revealed that in March 2002, Tanya Hinson, a PEN1 associate who had been photographed with Mazza, was living with Christina Harris in Harris’s 1800 West Gramercy Avenue apartment in Anaheim. Lamb and Rump visited frequently and sometimes spent the night. On March 8, at approximately 8:00 p.m., Harris told Hinson that Lamb had called and asked to speak to her about something important. She also told Hinson that she did not want anyone to come over to her apartment that night, and then she started to vacuum upstairs. While Harris was vacuuming, Lamb and Rump arrived at her apartment door. Hinson opened the door and spoke to them briefly, before they all told Harris they were leaving to go to a concert. However, before they could leave, Brenda Amezcua, Francis Valdovinos and Erica Campos arrived at Harris’ apartment.
Between 10:30 and 11:00 p.m., Harris turned off her vacuum. Within minutes, she and Amezcua heard a single gunshot. They looked out a window and saw a light blue Honda drive back and forth several times in the alley at a high rate of speed. There were three young, Hispanic-looking men with shaved heads in the car. Harris and Amezcua went outside and into the alley about ten minutes later. They found Miller’s body in the alley. Frightened by the incident, Harris and Amezcua returned to the apartment. They did not call the police. Later, some of the neighbors told Harris they had seen a man with tattoos jump the gate near her apartment.
Other nearby residents reported that they heard a gunshot between 11:15 and 11:40 p.m. from the direction of the alley, which was then followed by the sound of screeching tires.
At this time, Lamb had a shaved head and Rump had either short-cropped hair or a shaved head.
Gang Expert Testimony
At trial, the prosecution’s gang expert, Lieutenant Clay Epperson testified about the culture and behavior of members in the Aryan Brotherhood and PEN1 criminal street gangs. Epperson explained that the Aryan Brotherhood was formed in 1967 to control the white prison population. Before 2002, it had been the dominant white supremacist gang in the state prison system. However, by 2002, federal authorities had cracked down on the gang and weakened it. PEN1 formed in the 1980’s and evolved into a “skinhead” gang, and then into a “neo-skinhead” gang that modeled itself after California prison gangs. Epperson stated that members of these gangs are motivated by mercenary and self-serving issues rather than a strictly racist ideology. One example of this ideology is Z.O.G., Zionist Occupational Government, which is an anti-Semitic belief that “Zionists or Jews control the government and suppress non-Jewish whites.”
Although PEN1 was still subordinate to the Aryan Brotherhood in the late 1990’s, with most of the Aryan Brotherhood’s members in secured housing units in prison, first the Nazi Low Riders (N.L.) and then PEN1 filled the power vacuum. Epperson testified that unlike Hispanic Street gangs, White Supremacist gangs are not turf oriented. Their primary focus is ideology and the commission of crimes. The gang has a peculiar hatred for law enforcement, which means that a gang member’s status would be “hugely increased” by killing a police officer. Epperson also testified that in such a case, the gang member’s backup would also receive a boost to his reputation. He explained that members are expected to backup each other when a crime is committed, and that a backup is “somebody who is present, willing, and available to use force if... needed....” Moreover, if one gang member “takes the heat” for a crime committed by another gang member, the member taking the heat would have his status enhanced within the gang.
A gang member can backup another member by being a getaway driver, a lookout, and/or by acting as bait to lure a victim to a particular location. Further, there is an expectation among PEN1 members that they will backup each other up in any circumstance, and members are expected to take backup with them when committing violent crimes. While guns and violence are very important to the gang, White Supremacist gang members generally do not commit drive-by shootings, nor do they have turf confrontations. Instead, they tend to “use firearms as an intimidation factor and as a tool to achieve a violent end when they need it.” In Epperson’s opinion, if several PEN1 gang members are in a car and about to commit a crime, and one member has a gun, all the members would know of the gun’s presence. This is true because guns are important, but also because possession of a firearm carries a significant penalty, especially when most PEN1 gang members are convicted felons.
Epperson also explained that PEN1 members routinely use other people’s cars until the car is reported stolen as payment for drug debts. The gang often engages in acts of “payback,” which are sanctions against people who do something against the gang. One particular offense is called “ratting,” which means talking about the gang’s activities to an outsider. Giving an interview on television about the gang would be viewed by other gang members as an act of disrespect, even treasonous, and would certainly trigger some type of retaliation.
Citing prior convictions for firearm and drug offenses, including methamphetamine possession and sales, various crimes of violence, witness dissuasion, thefts and forgery related crimes, Epperson testified that the primary activities of the PEN1 gang are drug trafficking, fraud, identity theft, and crimes of violence like assault with a deadly weapon and attempted murder. He testified to the importance of gang monikers and tattoos, both of which evidence a “very deep and strong commitment to that gang,” and he stated that it would be dangerous for someone not in the gang to have a gang-related tattoo. Typical White Supremacist tattoos include swastikas, Celtic crosses, the letters “SS,” and the anarchy sign. The number 14 is significant in PEN1 circles. It stands for the gang’s credo and philosophy, which is stated in the following 14 words: “[W]e must secure the existence of white race and a future for white children.” The number “88” stands for “Heil Hitler,” the number “737” refers to PDS, 737 being the numbers associated with the letters PDS on a telephone touch pad.
Epperson also testified that PEN1 had its own internal discipline system in 2002, which would be “created and developed and implemented on the spot by the senior members or the shot callers at any given time or place.” In addition to the Miller case, Epperson knew of other gang members that had been sanctioned by their own gang. In Epperson’s opinion, Mazza, whose moniker is “Popeye,” was like the “C.E.O.” or “the president” of PEN1 of 2002.
Epperson opined that Lamb and Rump were active PEN1 gang members in March 2002. He based his opinion on conversations with other officers, prior police reports, information from the Department of Corrections and Rehabilitation, tattoos, prior admissions, evidence collected during the execution of search warrants, and letters written to and from other known gang members. Epperson testified that Miller’s murder was a gang-sanctioned hit and committed for the benefit of the PEN1 gang. The attempted murder of a peace officer would likewise promote, further, or assist PEN1 in the commission other criminal conduct.
Lamb’s Defense Evidence
At trial, Lamb presented evidence that on the morning of March 8, 2002, Michael Jones, the owner of South County Billiards in Costa Mesa, bought a pool table from two of Miller’s friends. Miller went with Jones to his store and then left, but he returned later in the afternoon. Jones and Miller were standing in an alley outside Jones’s store when police officers arrived to investigate whether the pool table had been stolen. Miller told Jones not to mention his name and then fled before the police could talk to him.
The parties stipulated that Costa Mesa police officers arrived at South County Billiards at 6:32 p.m. on March 8, 2002.
Another defense witness, John Raphoon, testified that in March 2002 he lived in Costa Mesa, and that he was a “pretty good” friend of Miller’s. On March 8, Raphoon had a birthday party. Miller showed up in the morning with his skateboard and spent the day at Raphoon’s house. They started the party in the morning with a big bottle of vodka. In the afternoon, Billy Joe Johnson arrived. Andrea Metzger, Claudia Beeman, and other people showed up throughout the afternoon. Raphoon saw Miller leave the party in Shirley Williams’ white Toyota truck, but Miller returned to Raphoon’s home later that evening.
Raphoon left his party between 8:00 and 9:00 p.m., as did Johnson and Metzger. Miller was still at Raphoon’s house when they left. At approximately 10:00 p.m., Metzger and Jesse Wyman went to Beeman’s house. Beeman testified that Metzger said, “Oh my God, did you see [Raphoon’s] house? It’s going off. I guess there was some PEN1 and NLR’s, somebody there.” Metzger also told Beeman that “Ugly Boy was getting pissed off at Scottish.” Beeman said that he heard about Miller’s murder from Williams, who was then his girlfriend, on the Saturday or Sunday following the party.
In 1996, Beeman was convicted of felony possession of methamphetamine and auto theft. She was convicted of felony possession of methamphetamine in 1999.
Williams testified that she and Miller lived in her truck and “spent a lot of nights together.” They frequently used speed and heroin. Williams testified that she had a falling out with Miller two days before Raphoon’s party. She also stated that she left the party at approximately 10:00 p.m. to buy drugs, and that she returned to the party at approximately 11:00 p.m. Miller was at the party when she left, but he was not there when she returned. However, she stated Raphoon and Johnson were there when she returned.
Marnie Simmons testified that she and Miller had been in a relationship prior to March 2002. On March 8, he called her several times. At around 10:23 p.m., Miller called and left a message on her answering machine. He told Simmons that he was at Raphoon’s party and that he was scared and going to another address. He also told Simmons to “dialogue this address,” and then said that he didn’t know what else to say.
Gordon Bridges was familiar with South County Billiards. He had gone to the store early in the morning hours of March 9, 2002 after the police arrived to investigate a stolen property report. Jones told Bridges what had happened and said that Miller had been there when the police arrived. Bridges was concerned for Miller’s safety, and he decided to drive around and look for Miller. Although he was not successful in finding Miller, he eventually drove to Noel Smith’s house where he was soon joined by Billy Joe Johnson and Williams. Bridges told them he was looking for Miller. A couple of hours later, Johnson told Bridges that “they” had found Miller’s dead body in an alley at about 11:45 p.m. and that he had been shot in the back of the head.
Gordon Bridges has prior convictions for robbery, escape, forgery, first degree burglary, resisting arrest, unlawful use of an access card, solicitation of a crime, and dissuading a witness by force.
Williams told Bridges that Johnson had forced her to pick up Miller around the corner from South County Billiards, and that together they drove Miller to Anaheim. Williams also said that Jesse Wyman had been hiding in the back of her truck. Bridges testified that he never saw Williams’ white truck after the night Miller was killed.
Williams denied telling Bridges that she was forced to take Miller to Anaheim with Jesse Wyman hiding in the back of her truck, and denied that Johnson made her set up Miller.
Bridges initially talked a lot about Miller’s murder, but about two or three weeks later, Billy Joe Johnson and Donny McLachlan told him to “watch [his] mouth.” About a month after Miller’s death, Noel Smith placed a frantic call to Bridges. Smith told Bridges that Billy Joe Johnson and Donny McLachlan had “grabbed him off his property, made him get in the truck to take him — to take them to where I was ‘cause they were looking for me.” Bridges testified that Smith was “scared to death” and crying when he made the call.
Smith denied warning Bridges about Johnson and McLachlan.
Bridges eventually met Billy Joe Johnson. Johnson told him to shut his mouth about the murder. Bridges challenged Johnson by telling him “to look me in the eye and tell me he didn’t have nothing to do with the murder,” but that Johnson “wouldn’t do it.” Johnson cautioned Bridges: He told “[Bridges] to mind [his own] business, that it was politics, and it didn’t involve [him].” Bridges eventually contacted the police and told them about his conversation with Johnson. Bridges told a detective that Johnson had said that Miller was shot in the back of the head three times in an alley on “Garnsey.”
Billy Joe Johnson testified that he and Miller had been good friends for 20 to 25 years. However, he “wasn’t really happy with” Miller after the Fox television interview. Johnson said he went to Raphoon’s birthday party on March 8, and he was angry that Miller was at the party. Although Johnson and Miller were at the party, Johnson denied that other PEN1 gang members were present.
At the time, Johnson was serving a life sentence for killing Corey Lamon with a hammer, and he has numerous prior felony convictions. He also has numerous tattoos, including an eagle with a swastika, a demon with a swastika, iron crosses, and the words “white” and “pride.” He admitted committing the Lamon murder and related charges for the benefit of the PEN1 gang.
Johnson testified that he and Miller left the party between 8:00 and 10:00 p.m. to get some heroin in Anaheim. They stopped on the way, and Miller made a telephone call from a pay telephone. Johnson said that he and Miller drove to an alley, parked Johnson’s truck and got out. He became very annoyed with Miller and “just reached in [his] waistband and grabbed [his] gun and blasted [Miller].” Johnson testified that he shot Miller from a distance of a foot to a foot and a half after Miller stepped in front of him. He said that he just drove away from the scene, and he denied making any screeching noises with his tires. Johnson later drove back to Raphoon’s house, picked up Williams, and drove to Smith’s home around 3:00 or 4:00 a.m. Bridges was at Smith’s house and they told him, “Hey, did you hear that Scottish got blasted.” Johnson claimed there were no other cars in the alley and that no one helped him commit the murder. He admitted telling Bridges to “watch his fuckin’ mouth.”
Johnson explained that he gave Lamb the murder weapon the next evening when they ran into each other at a bar. According to Johnson, Lamb wanted a gun to protect himself from Hispanic gang members. Johnson said he had purchased the gun six months earlier from a “mutual friend,” and that he had purchased a loaded gun. He could not describe the bullets and did not know where the safety was located.
Johnson also testified that he and Rump were cellmates at the Orange County jail in 2004. He said that they got along well, and claimed that he was the one who initiated the call to Rump’s investigator, Gail Greco, to let her know that Rump was innocent. Johnson told Greco that he “blasted [Miller’s] ass” and it was “a clean kill.” He also claimed that he had never told anyone else about his involvement in the Miller murder. Johnson explained to Greco, “I want to see right being done, that’s why I’m telling you that I’m the one that killed Scott Miller.” Johnson denied any affiliation with N.L., or that he received orders to kill or setup Miller. He also denied telling anyone that he was upset because Lamb shot Miller in the back of the head rather than the face.
Dr. David Smith, a physician who specializes in addiction medicine, explained the effects of methamphetamine on the human body. He viewed the videotapes of Rump, Lamb, and Harris’s interviews, and based on this viewing, opined that Harris was under the influence of methamphetamine when questioned, Rump was “crashing” after being under the influence, and that Lamb was also under the influence of methamphetamine but to a lesser extent that the others.
Daniel Vasquez, a corrections consultant, testified as a defense gang expert. He testified that PEN1 is a criminal street gang rather than a prison gang. He further stated that the average gang member would not want to be in possession of a gun that had just been used to commit murder. He also explained the benefits of a prisoner being placed into protective custody, as Mason had been after he made his statement to police.
Wynette Augustine, a licensed optometrist, testified that Lamb’s vision was 20/200 in 2002, which meant that objects would become blurry at a distance of 16 inches and get exponentially worse the farther Lamb moved away from the object. In 2007, at the time of trial, Lamb’s vision was 20/400.
Sergeant Charles Knight testified about the March 11 attempted murder. After talking to various other officers about the incident, he was unable to determine the direction Lamb’s gun was pointed when he fired it.
Rump’s Defense Evidence
Frances Valdovinos testified on Rump’s behalf. She stated that Amezcua and Campos were already at Harris’s home when she arrived at approximately 8:00 p.m. on March 8, 2002. She remembered seeing between 5 and 10 people downstairs at the apartment, and she recalled that Lamb and Rump were in this group. However, she admitted that she barely glanced at them before walking upstairs. She stayed upstairs even after hearing the gunshot while Harris and Amezcua went downstairs and into the alley. Later, Amezcua told her about discovering the body and told her everyone needed to leave the apartment.
Thomas Gleim, a defense investigator, interviewed Amezcua and Valdovinos in 2007 just prior to trial. He showed them a series of photographs that included a photograph of Rump. Neither woman identified Rump as having been at Harris’s house on the night of the shooting.
Prosecution Rebuttal Witnesses
During the trial, defense investigator Richard Powell talked to Gordon Bridges. Bridges told Powell that after Miller’s murder he challenged Billy Joe Johnson by saying, “Look me in the eyes and tell me you didn’t kill Scottish.” Johnson responded with something to the effect of “You’ve been around. It’s politics. There is nothing that could have been done about it.”
Defense Investigator Gail Greco testified that Johnson unexpectedly left a message on her business voicemail on July 4, 2006. The next day, she spoke with Lamb’s attorney before interviewing Johnson. She documented her subsequent interview with Johnson. Johnson told Greco, “I was there. I did it. They had nothing to do with this murder.” Johnson also told her that he had talked to Rump’s investigator about one year after the murder, at a time when Johnson and Rump were cellmates. He also told Greco that he did not know Lamb, but that he ran into Lamb at a bar the night after the murder. Lamb was looking for a gun because he thought Mexican gang members were shooting at him. He told Greco, “I ran into him at that bar, one convict to the other. I just happened to have one [a gun], that was it. This should clear the books.”
Johnson explained to Greco that he had given Miller the shirt he had been killed in because he and Miller were friends. Johnson also told her that he and Miller had gone to Anaheim to “score” some heroin, and that “they got out of their vehicles and scored.” Johnson further said that they had gotten into some type of argument, with Johnson telling Miller, “I don’t have to listen to you. Fuck you[,]” before he “blasted [Miller’s] ass.” Johnson said he then jumped back into his truck, wiped the gun, put it under the seat, and drove back to the party. He described Miller’s murder as a “clean kill.” He also told her that he had never told anyone else about his involvement in the crime. Greco testified that although she tried to interview Johnson a second time, she never had another opportunity to talk to him.
Greco testified that she understood that there was only one vehicle involved in the incident and that the word “vehicles” was a typographic error resulting from something her word processor had done.
The prosecutor also called Anaheim Police Officer David Heinzel, who testified that he and his partner, Officer Rich Castro, were dispatched to the Miller crime scene a few minutes before midnight on March 8, 2002. At approximately 12:30 a.m., on March 9, they contacted Maria and Franz Baumgartner, who were residents in the area. Maria, who spoke Spanish and used her husband as an interpreter, told the officers that she had heard two gunshots between 10:50 and 10:55 p.m. After the shots, Maria looked out her window and saw two people running in an easterly direction in front of her residence. After receiving this information, the officers searched the area west and north of the Baumgartner residence. They found two shoe prints outside of an apartment that turned out to be Harris’s apartment. Harris was visibly nervous when the officers knocked on her door.
Detective Robert Blazek testified that Simmons had kept Miller’s March 8, 2002 voicemail message. The recording was played for the jury. In it, Miller told Simmons he was at Raphoon’s birthday party and was scared. The address he gave was for Rob Ayers’s home in Huntington Beach. Miller also told Simmons, “I love your life[,] and “See you, see you,” before the message ended. When Blazek talked to Jones, the owner of South County Billiards, Jones said that he had known Miller for a long time, and that Miller never would have left his skateboard at Raphoon’s party unless he had left it with friends or had known he was coming back.
Blazek also interviewed Valdovinos. In April of 2002, she told him that she had seen white guys when she entered Harris’s apartment. She described one individual as wearing a baseball cap and a dark jacket. He also showed her pictures of Miller, Lamb, and Rump in six-pack photographic lineups. She could not identify anyone from the photographs. When Blazek asked her if she had seen Miller at the party, Valdovinos said, “I don’t know if he was there, like there, but I mean — I don’t know. It was kind of weird that all those white people were there. And all of the sudden after this, you know, they just disappeared, you know what I mean? By the time we went down, everybody was gone.” When asked how tall the man was, Valdovinos said that he had been about her height. Valdovinos was approximately five feet, five inches tall. She also said, “he was dark.”
Blazek also testified that he was aware of other interviews conducted by law enforcement officers in connection with the crimes. According to Blazek, a Detective Clapper interviewed Andrea Metzger. Metzger was asked who was there besides Billy Joe Johnson?” She responded with a “Shhhh,” and she told Clapper that “they” could hear her and that she was “going to get in trouble.”
The record states the interview was with Andrea Iacono, but it is clear from other parts of the record that it was Andrea Metzger.
Raphoon told Blazek that Williams came by the morning after the murder to retrieve Miller’s skateboard, and that she was the first to tell him about the murder. However, he had previously said that he heard about Miller’s death from Williams after she read about it in the Sunday paper. Blazek also testified that Beeman initially denied going to Raphoon’s party, but she later admitted that she was there earlier in the day and saw Miller in Williams’s truck. Williams initially told Blazek she had not seen Miller since March 6, 2002, but she later said that she had seen him on March 7.
The Orange County Register printed a story about Miller’s murder on March 10, 2002.
The parties stipulated that on March 11, 2002, Lamb was six feet tall and weighed one hundred and ninety pounds, and that Rump was five feet, eleven inches tall and weighed two hundred and ten pounds.
After a six-week trial, with over 3,500 pages of reporter’s transcript and 300 exhibits, the jury deliberated for approximately eight days and found both defendants guilty on all counts and found true all enhancements. Rump’s motion for new trial was denied. He filed a timely appeal.
II
DISCUSSION
Sufficiency of the Evidence
Rump presents several challenges to the sufficiency of the evidence. With respect to the March 8, 2002 murder of Miller, Rump challenges the sufficiency of the evidence to prove he aided and abetted codefendant Michael Lamb in the commission of murder, possessed a firearm, and actively participated in PEN1 criminal street gang. With respect to the March 11 car chase and attempted murder of Helmick, Rump challenges the sufficiency of the evidence to prove he aided and abetted Lamb in the commission of attempted murder as a natural and probable consequence of discharging a gun, to prove his active participation in the PEN1 street gang, and to prove he possessed a firearm.
Our role in addressing challenges to the sufficiency of the evidence is quite limited. “[T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
1. Aiding and Abetting Murder
Rump claims there is no proof he shared Lamb’s intent to kill, or that he and Lamb made an agreement to kill Miller. We disagree.
The evidence established that PEN1 is a white supremacist gang. Miller was a founding member of the gang, and in 2002, Rump and Lamb were active members of this gang. In February 2002, Miller defied Mazza, another of the gang’s founding members, and appeared on a Fox television program in which he discussed the gang and its activities. Although Fox apparently attempted to hide Miller’s identity, it was obvious to anyone who knew him that Miller was the person interviewed in the program. After the broadcast, Miller was “in the hat” with other gang members and there was a “green light” given for him to be killed.
On March 8, Lamb called Harris’s apartment and wanted to talk to Hinson about something very important. Hinson is a female associate of the gang. At Hinson’s invitation, Rump and Lamb came to Harris’ apartment notwithstanding Harris’s insistence that no one come over that night. According to Freiwald’s son, they left her apartment at approximately 8:30 p.m. and arrived together at Harris’s apartment together. After Hinson allowed Lamb and Rump into Harris’s apartment, they waited inside the apartment for a few minutes. Two or three minutes after Lamb and Rump left Harris’s apartment, Miller was shot and neighbors heard the sound of screeching tires.
According to Epperson, PEN1 gang members generally commit crimes, especially serious crimes, with a backup. Lamb and Rump were constant companions. In his correspondence, Rump prided himself on his driving skills, writing, “If it has a motor and wheels, then I drive it, ride it like you wouldn’t believe. I’ve been doing both for as long as I can remember.” In a letter to Lamb, Rump wrote, “And next time I ain’t stopping, we are driving straight to hell.” A reasonable inference is that Rump was Lamb’s “wheelman” for a gang sanctioned killing. He also wrote a letter to Mazza, the gang member standing trial when Miller’s interview was aired, expressing his belief that his own “journey had just begun” and a wish for positive results in Mazza’s case.
A person who aids and abets a crime is liable as a principal for that offense. (Pen. Code, § 31.) “[A]n aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) To be found liable for a specific intent offense, an aider and abettor must share the requisite intent, or the offense must be a natural and probable consequence of the act committed. (People v. Beeman (1984) 35 Cal.3d 547, 561.)
A conspiracy is committed “when the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) In order to be convicted on a theory of conspiracy to commit murder, the jury must find the defendant was one of the participants who harbored the specific intent to kill. (People v. Vu (2006)143 Cal.App.4th 1009, 1025.) Furthermore, we have recognized that there is rarely direct evidence of a defendant’s intent, and that intent is most often proved through circumstantial evidence. (Ibid.)
Here, the evidence establishes that Rump prided himself as the “wheelman” in crimes committed by him and Lamb. Lamb and Rump left Freiwald’s apartment together at approximately 8:30 p.m. on March 8, 2002. They later arrived at Harris’s apartment, and left her apartment together shortly before shots were fired. As his telephone call to Freiwald demonstrates, Rump quickly tried to establish an alibi for the night of Miller’s murder after his arrest three days later. And, he and Lamb fled from officers investigating a stolen vehicle report. This evidence, coupled with the gang expert’s testimony and evidence admitted through Rump’s telephone calls and letters, constitutes sufficient evidence to support the verdict, notwithstanding that the circumstances may also support a contrary finding.
2. Firearm possession
Rump argues there is insufficient evidence he was a felon or active gang member in possession of a firearm on March 8, 2002 as charged in counts 4 and 5. We disagree.
A violation of section 12021.1, subdivision (a), or section 12031, subdivision (a)(1), requires proof that the defendant knowingly possessed a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592.) Possession may be established constructively. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) Here, the trial court instructed the jury that “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” (CALCRIM No. 2511.)
Assuming the jury found Rump to be the getaway driver for the crime, it is also reasonable to infer he was aware of the gun Lamb used to kill Miller, and that he at least constructive possession of the gun both before and after the crime. Therefore, viewing the evidence in the light most favorable to the verdict, we find substantial evidence of Rump’s gun possession.
3. Active Participation in a Criminal Street Gang
Rump argues that there was insufficient evidence to establish that he was involved in any felonious conduct by gang members on March 8, 2002. A conviction under section 186.22, subdivision (a) requires proof that the defendant willfully promotes, furthers, or assists in “any felonious criminal conduct” by gang members with knowledge that the gang engages in a pattern of criminal gang activity. (Pen. Code, § 186.22, subd. (a).) In this case, the jury found Rump actively involved in a gang-related murder. His participation in the instant offense is sufficient for active participation.
4. Aiding and Abetting Attempted Murder
Rump challenges the sufficiency of the evidence to support his conviction for attempted murder of a peace officer under theories of aiding and abetting or uncharged conspiracy. We conclude Rump’s conviction is supported by substantial evidence.
To convict under the theory Rump aided and abetted Lamb in the commission of attempted murder, the evidence must be sufficient to prove he had knowledge of Lamb’s purpose and the intent to encourage or facilitate that purpose. “The actual perpetrator must have whatever mental state is required for each crime charged. An aider and abettor, on the other hand, must ‘act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]... Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, first italics in original, second italics added.)
With respect to the uncharged conspiracy theory, “‘[A] conspirator is criminally liable for the act of a coconspirator which follows as a probable and natural consequence of the common design, even though it [is] not intended as part of the original design or common plan. [Citations.]’” (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 843.) An agreement may be express or tacit, and such agreements are generally proved through circumstantial evidence. (People v. Vu, supra, 143 Cal.App.4th at pp. 1024-1025.)
The jury instructions identified resisting, obstructing or delaying a peace officer and active gang member carrying a firearm as the target offenses. Again, viewed in the light most favorable to the judgment, the evidence demonstrates Rump knew he and Lamb were being pursued by peace officers, knew Lamb was armed, and like Lamb, he decided to try to evade the officers. That Lamb would fire his gun at some point during their flight is a natural and probable consequence of the situation he and Rump created. Thus, under either the uncharged conspiracy or aiding and abetting theories, substantial evidence supports the verdict.
5. Active Participation in a Criminal Street Gang and Firearm Possession
Rump argues there is no evidence he knew Lamb was in possession of a gun on March 11, nor did he promote, further, or assist Lamb’s commission of felonious criminal conduct. We disagree.
Again, Rump had dominion and control over the gun Lamb possessed while he was driving the Ford Taurus. (See People v. Taylor (1984)151 Cal.App.3d 432, 436; People v. Neese, supra, 272 Cal.App.2d at p. 245.) Furthermore, he actively assisted Lamb in their attempted flight from the officers by driving, stopping so they could run, and by lying on his back and kicking the apartment wall. Therefore, substantial evidence supports the conviction for street terrorism and being a felon in possession of a firearm on March 11, 2002.
6. Sentencing Error
Rump contends the trial court erred by imposing an indeterminate 20 years to life for the section 12022.53, subdivision (c) firearm enhancement. That section states, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.” Thus, the court incorrectly recorded the punishment for this enhancement as an indeterminate term, rather than a determinate 20 year term. Consequently, the abstract of judgment must be corrected to reflect Rump’s sentence as life without the possibility of parole, tripled pursuant to the Three Strikes law, an indeterminate term of 50 years to life, plus a determinate term of 33 years.
III
DISPOSITION
The clerk of the court is directed to correct the abstract of judgment to reflect the imposition of a determinate term of 20 years for the section 12022.53, subdivision (c) enhancement associated with count 7, attempted murder, and to forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.